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NAVY | DRB | 2007_Navy | ND0700462
Original file (ND0700462.rtf) Auto-classification: Denied
ex-MMFA, USN
ND07-00462
Current Discharge and Applicant’s Request
Application Received: 20070227   Characterization Received:
Narrative Reason: MISCONDUCT Authority: MILPERSMAN 3630600

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:

Applicant’s Issues:       1. Medical Condition caused him to commit misconduct
                           2. Post service

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
Date: 20 080220   Location: Washington D.C        R epresentation :


Discussion

Issue 1 ( ). The Applicant’s representative, the Disabled American Veterans, argues the Applicant’s diagnosed medical condition sufficiently mitigated his misconduct to warrant an upgrade in his characterization of service. However, there was no evidence presented at the hearing to support this allegation. Moreover, the undated letter from the Social Security Administration contained in the Applicant’s file indicated he did not possess a condition severe enough to prevent him from working. I n response to the Applicant’s claim that he was disabled because of Post Traumatic Stress Disorder and Bipolar Disorder, the Social Security Administration noted the Applicant was able to think clearly and carry out normal activities. The mere presence of a personality disorder is not a bar to Naval Service. There is no evidence in the record to suggest that Applicant was not responsible for his misconduct or that he should not be held accountable for his actions. In the Applicant’s case, the Board could discern no impropriety or inequity in the Applicant’s discharge . Therefore, the NDRB considered the Applicant’s discharge proper and equitable. Relief is not warranted in this case.

Issue 2 ( ). The Applicant’s representative also contends his discharge characterization should be upgraded based on his post service. There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade. Therefore, relief is not warranted in this case

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that

Administrative Corrections to the Applicant’s DD 214

 The NDRB did note administrative error(s) on the original DD Form 214 :
         “ MILPERSMAN 1910-142 ”
The NDRB will recommend to the C ommander, Navy Personnel Command, that the DD 214 be corrected as appropriate.



Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19980314 - 19980315              Active:
Period of Service Under Review:
 Date of Enlistment: 19980316      Years Contracted :        Date of Discharge: 20010223
Length of Service : 02 Yrs 11 Mths 08 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 32          Highest Rank /Rate : FN
Evaluation marks (# of occasions):       Performance: 3.0 ( 1 )       Behavior: 3.0 ( 1 )          OTA: 3.00
Awards and Decorations ( per DD 214): NER

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 19991218:        Applicant declared a deserter.

20000708:        A pplicant to restriction at TPU Great Lakes, IL 1155.

2000072 1 :        Applicant returned to USS LASALLE (AGF 3) 1900.

20001109 :        S P CM -- Viol UCMJ Art. 86 , (4 specs) - (1) Unauthorized absence (3 2 days) , (2) Fail to go to appointed place of duty on 20000110, (3) Unauthorized absence (5 5 days) , (4) Unauthorized absence (12 2 days ).
         Sentence - FOP ( $ 670.00 ) for ( 2 months); RIR ( E-1 ); Confinement ( 60 days) , and a bad conduct discharge. [Note: R eport of results of trial dated 20001109 outlines the terms of pretrial agreement: Bad conduct discharg e will be suspended for a period of 6 months from the date when this sentence was announced, at which time, unless sooner vacated, it will be remitted without further action .] .

Discharge Process

 Date Notified:                                       20010122
Reason for Discharge:     -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  20010122
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
         GCMCA review                               

Commanding Officer Recommendation (date):        ( 20010201 )
Separation Authority (date):     COMNAVPERSCOM ( 20010214 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20010223

NDRB Documentary Review Conducted (date):        2 0070125
NDRB Documentary Review Docket Number:   ND06-00636
NDRB Documentary Review Findings:                 Proper as issued and no change is warranted .



Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe) Letter from Board for Correction of Naval Records

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, effective 25 January 2001 until 21 August 2002,
Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.
B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86 (over 30days Unauthorized absence).


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity , OUSD (P&R) PI-LP , The Pentagon , Washington, DC 20301-4000 . You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the application is received at the NDRB within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD . ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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